Opinion
19-CV-11667 (CM)
01-10-2020
ERNEST CALVINO, JR., Plaintiff, v. JACKELINE BAEZ, ET AL., Defendants.
ORDER OF DISMISSAL :
Plaintiff brings this action pro se. He invokes the Court's federal question jurisdiction and sues four private individuals. By order dated December 27, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). The Court dismisses the complaint for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
A claim is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 324-25 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that "finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible"); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) ("[A]n action is 'frivolous' when either: (1) the factual contentions are clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory.") (internal quotation marks and citation omitted).
BACKGROUND
Plaintiff Ernest Calvino invokes the Court's federal question jurisdiction and brings suit against four individuals, including one identified as the "mother of [his] son." Plaintiff makes the following allegations:
D[e]famation, misleading other, gar[nish]ment lack of transfer Asset, lack of support Discrimination.(Compl., ECF No. 2, at 2.) Plaintiff alleges that his claims arose on "diff[erent] dates." The only other factual allegations in the complaint are the following:
Anon[y]mous witness[es] say that this woman have part of m[y] asset[s]. They had probably lie[d] to me with electronic[s]. An[ony]mous witness[es] say this woman [is] trying to support me.(Id. at 5.) Plaintiff seeks money damages for his emotional distress.
DISCUSSION
Even when read with the "special solicitude" due pro se pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims rise to the level of the irrational, and there is no legal theory on which he can rely. See Denton, 504 U.S. at 33; Livingston, 141 F.3d at 437.
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaints cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend and dismisses both actions as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff has filed nearly a dozen actions in December 2019, many of which have already been dismissed as frivolous. See, e.g., Calvino v. Jones, ECF 1:19-CV-11601 (CM) (S.D.N.Y. Dec. 23, 2019). Plaintiff has already been warned that further vexatious or frivolous litigation in this Court will result in an order barring him under 28 U.S.C. § 1651 from filing new actions in forma pauperis unless he receives prior permission, and the Court reiterates that warning.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
Plaintiff's complaint is dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: January 10, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge